Are Easements Appurtenant Transferable?

Are Easements Appurtenant Transferable?

The easement will go to the new owners. A convenient approach to understand an appurtenance is that it is tied to the land’s title ownership and is therefore transferred to the new title owner upon sale.

For instance, grant Jerry and his heirs and assigns an easement across her property-which also may include a driveway; garage and landscaping-to allow Jerry’s family to visit him. He then sells the property to Becky.  Upon closing, Becky will include Jerry’s easement in her deed of conveyance.

Since it is tied to the title, it will be transferred with the property at this time. When Jerry dies and his property is then sold, his heirs can collect the value of Jerry’s easement on Becky’s property when they sell it if they wish.

Are Prescriptive Easements Appurtenant Or In Gross?

Easements appurtenant are said to run with the land, whereas easements in gross are peculiar to one person or entity. Either form of an easement may constitute a prescriptive easement; however, these two forms of an easement are distinguishable.

An easement appurtenant is a prescriptive easement in respect to that particular parcel of land. An easement appurtenant does not transfer upon sale of a property.

However, if a prescriptive easement arises between two owners of adjoining properties, the easement will be treated as an in gross a prescriptive one, regardless of the wording of the deed to convey the interest in gross.

Also, if an easement appurtenant is to be recognized in a conveyance of real property, the deed should expressly state that the easement runs with the land.

In contrast, an easement in gross is a prescriptive easement that runs with all of the lands in question- so it will be upheld in the event of a subsequent sale or conveyance. A prescriptive easement is an easement that applies to all the property owned by a person. This type of easement will change with the ownership rights conveyed.

Are Water Rights Appurtenant?

Water rights are appurtenant, meaning they belong to the land, not the owner. If an oceanfront property is sold, the new owner acquires the littoral rights, and the previous owner forfeits them; the rights cannot be transferred separately.

Also, if a water right is appurtenant to a parcel of real property, that easement cannot be transferred with the title; however, the property owner does not lose the water rights.

The rights of an owner to surface water do not transfer with the title. Although a property owner cannot receive a share of surface water beneath the land, he may obtain surface water rights through appurtenant easements or agreements with others.

Can An Appurtenant Be Terminated?

Yes, if at any moment the same person comes to hold both the dominant and servient tenements, the easement appurtenant is instantly terminated. The original easement is terminated even if ownership is subsequently divided along the same boundaries as the original properties- called severed parcels.

The dominant property and the servient property will now be considered severed lots. Appurtenant easements are not transferable with the dominant and servient tenements, where there are two independent properties in this case.

The purpose of severance is to eliminate the appurtenancy. For severance to occur there must be both a change in property boundaries and a change in ownership of the dominant and servient tenements.

Can You Build On An Appurtenant Easement?

Yes, you can build on an appurtenant easement, but you cannot use the easement as an access point to your building. However, it may be possible to change the easement’s nature with both parties’ permission.

If a new house is built that is ultra-close in size and shape to the original house, it is possible that a court will rule that a new easement was created for convenience purposes only. Furthermore, the appurtenant easement of a dominant property owner is transferable to another with the conveyance of the property.

In this case, it would not be possible to build on an appurtenant easement, nor could the easement be used as a means of access to your building. An appeal may be filed against such a ruling, and permission may be granted if it is deemed that an appurtenant easement was created accidentally by necessity.

How Do I Create An Easement Appurtenant?

The following are the steps to create an easement appurtenant:

  • Find an Appurtenant easement
  • Post a sign or make a statement to indicate the intention to create an appurtenant easement like an Easement for access to and from my property for parking and other uses
  • Determine who the dominant and servient tenements are
  • Must establish that each owner intended to create an easement appurtenant
  • Have the owner sign a document to show the intent of creating an appurtenant easement
  • Create an easement appurtenant in a manner that is not very difficult for the courts to determine – usually by deed or signed contract for access and parking only
  • Have a document that can be passed onto another owner when an appurtenant easement is created in the future.
  • It is the location where an easement is sold or donated to a nearby estate. It is made by a written easement agreement deed between the two property owners or by a court order.

How Do I Know If My Easement Is Appurtenant Or Gross?

  • Easement is appurtenant after it has been conveyed
  • An easement is gross before it has been conveyed
  • Easement in gross can be created by a written document
  • Easement can be appurtenant or appurtenant, but not both.
  • If the party that created the easement did not have clear facts and was mistaken, then the court may choose to void the easement or create a new one that is different from the original intentions of the parties involved.
  • The easement will terminate upon death when the dominant and servient tenements are hereditaments.

Is A Party Wall An Easement Appurtenant?

Yes, townhouses are among the most typical examples of appurtenant easements. Typically, townhouses feature party walls that span the boundary between two independent pieces of land- one for each townhouse.

A party wall is an example of a right of way, typically created between two adjacent homes or buildings that share a wall. These include driveways, entrances, walkways, and even walls; however, this does not mean that the easement is any less important.

Party walls are easements appurtenant as they do not pose a threat to the buildings they border, but they do pose a threat to the neighboring vehicle.

In such cases, these are usually considered gross, which means that there is a right of access under the law; however, this can be modified by an agreement between the two property owners.

Is An Easement Appurtenant Assignable?

Most easements are assignable. Others are not. The easement is assignable if it may be sold, gifted, devised, inherited, or otherwise transferred. The assignment of easements is governed by a number of variables, the most important of which is whether the easement is in gross or appurtenant.

If the easement is appurtenant, it cannot be assigned unless the party that sells or transfers the land has permission from the person with an easement; if it is in gross, however, it can be assigned freely.

What Is A Characteristic Of An Appurtenant Easement?

An appurtenant easement is a property right that grants the possessor the right to utilize the neighboring real property. This property is transferred together with the land.

The dominant tenement is the piece of land that benefits from the easement, whereas the servient tenement is the parcel of land that grants the easement.

The following are the characteristics of appurtenant easement:

  • There is a dominant and servient tenement.
  • The easement will terminate upon the death of the party with the easement
  • The dominant property owner can use the servient property for parking or other uses
  • Can be created by a written document or by deed
  • At least one party must have a dominant property interest
  • Both parties must intend to create an easement at the time of conveyance
  • The easement can be sold, gifted, devised, inherited, or otherwise transferred.

How Many Lots Are Required For An Easement Appurtenant To Exist?

For an appurtenant easement to exist, two separate parties must possess two separate pieces of property- the dominant and the servient tenement.

One piece of land must be adjacent to, or within a distance of (the distance depending on the average rate of travel), the other piece of land. For total control over their properties, both parties must possess a complete right-of-way through the property.

The front and rear lot lines are always included in determining whether it is possible to have an easement appurtenant- in this case, an easement on the dominant property to access the servient property.

If one of the pieces of land is a lot line, then the two parties can’t have an easement appurtenant. If the lot is divided by a line that runs in a horizontal direction, then it is still possible for an appurtenant easement to exist.

Is A Fence Considered To Be An Appurtenant Structure?

Yes, Appurtenances comprise of a garage, deck, driveway, utilities, fences, private beach access –

for example, septic tank installation and drain field, and grading that does not exceed the threshold established by local or building regulations, whichever is less and does not involve placement of fill in any wetland, floodway, floodplain, or water ward of the Ordinary High-Water Mark. 

Is An Appurtenant Easement An Encumbrance?

An encumbrance is a claim on an asset made by a non-owner entity. Common kinds of real estate encumbrances include liens, easements, leases, mortgages, and restrictive covenants.

Obligations affect the transferability or utilization of subjected properties. The easement attaches explicitly as a benefit of interest to the dominant estate and as a burden to the servient estate.

What Are Appurtenant Water Rights?

Water rights are appurtenant, meaning they belong to the land and not the owner. If an oceanfront property is sold, the new owner acquires the littoral rights, and the previous owner forfeits them- the taking of the property itself does not affect the owner’s rights.

In addition to being appurtenant, water rights are also beneficial in that they grant the owner the ability to prevent others from diverting water from his or her property. Additionally, there may be specific terms for acquiring a water right and time limitations for its use.

What Is A Negative Easement Appurtenant?

The owner of a negative easement has the ability to restrict the property owner or occupant from utilizing the land in accordance with the provisions of the easement. In other terms, an easement is the right to use or restrict the use of another person’s land for a certain purpose- usually in either a permanent or temporary manner.

An easement can also be a conditional right, in which the owner has the option of granting access to the land in exchange for something else- such as payment of costs, labor, or even the physical presence of the owner.

A typical negative easement is one that restricts how certain land can be used, such as restricting access to a swimming pool for swimming purposes only.

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